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Bergstein & Ullrich, LLP

This blog covers the civil rights opinions of the Second Circuit Court of Appeals. Sponsored by the law firm of Bergstein & Ullrich, LLP, New Paltz, N.Y. We can be reached at www.tbulaw.com. This blog should not be construed as offering legal advice.
Bergstein & Ullrich is a litigation firm formed in 2001. We concentrate in the areas of civil rights, employment rights and benefits, workplace harassment, police misconduct, First Amendment and appellate practice.
We are admitted to practice in the courts of the State of New York, the Southern, Eastern and Northern Districts of New York, the Second and Third Circuit Courts of Appeal and the United States Supreme Court.
This blog's author, Stephen Bergstein, has briefed or argued approximately 200 appeals in the State and Federal courts.

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Monday, July 18, 2011

ADA tester has standing to sue Nanuet Mall for disasbility violations

The Court of Appeals has reinstated a disability discrimination suit brought by a wheelchair-bound paraplegic who sued Nanuet Mall over public access violations and wants to return to the mall, in part, to test its compliance with the Americans with Disabilities Act.

The case is Harty v. Simon Property Group, a summary order decided on June 29. The Second Circuit (Miner, Raggi and Lynch) makes two rulings: Harty has standing to bring this action and he also states a claim for disability discrimination.

The Americans with Disabilities Act allows plaintiffs to sue for injunctive relief. But in order to get an injunction, the plaintiff has to show that he suffered an ADA violation at the public establishment and that he intends to return there in the future such that he will likely suffer another violation someday. The district court held that Harty had no standing to seek an injunction, but the Court of Appeals reverses because he plans to return as a patron "to avail himself of the goods and services offered to the public at the property" and also as a tester to make sure that the Nanuet Mall is complying with the ADA. He also travels to gun shows around the country, and in returning to the area for that purpose, he intends to shop at Nanuet Mall. On remand, the district court is free to conduct discovery and fact-finding to ensure that Harty truly intends to return to the Nanuet Mall in the future.

The case law in the area of ADA standing is sparse; this could have been a published opinion. The holding that Harty has standing, in part, because he wants to return as a tester seems innovative in light of the district court's ruling, as follows:

The other question on appeal is whether Harty has a real claim under the ADA on the merits. The Second Circuit says that he does. You can read this decision until you are blue in the face and have no idea what actually happened to Harty to prompt this lawsuit. The district court opinion says that "Plaintiff, who 'is mobility impaired and is bound to ambulate in a wheelchair,' alleges that Defendant has discriminated [and is continuing to discriminate] against the Plaintiff by denying him access to, and full and equal enjoyment of, the goods, services, facilities, privileges, advantages, and/or accommodations of the subject property, as prohibited by [the ADA]. Defendant's alleged violations include, but are not limited to, lack of accessible routes, accessible public restrooms, and access to goods and services."